United States Court of Appeals Fifth Circuit 

### F I L E D October 8, 2013

Lyle W. Cayce Clerk 

### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 13

- 70031

THOMAS WHITAKER ; PERRY WILLIAMS ; MICHAEL JOHN YOWELL ,
P laintiffs

– Appellants ,

versus BRAD LIVINGSTON, Executive Director of the Texas Department of Criminal Justice ; WILLIAM STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division ; JAMES JONES ; EXECUTIONERS UNKNOWN , Defendants

– Appellees

.

Appeal from the United States District Court for the Southern District of Texas

Before DAVIS, SMITH, and SOUTHWICK , Circuit Judges

. PER CURIAM :

Plaintiffs Thomas Whitaker, Perry Williams, and Michael Yowell appeal the d enial of a motion for preliminary injunction to restrain the defendant Case: 13-70031 Document: 00512401226 Page: 1 Date Filed: 10/08/2013No. 13

- 70031
state officials from conducting executions with pentobarbital procured from compounding pharmacies. The plaintiffs raise claims under the Eighth and Fourteenth Amendments, under the Supremacy Clause, and based on an

access
- to

- the

- courts argument. Yowell is scheduled for execution on October 9,
2 013. To obtain a preliminary injunction , a plaintiff must establish
(1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) that the grant of an injunction ill not disserve the public interest. Byrum v. Landreth , 566 F.3d 442, 445 (5th Cir. 2009) (quoting Speaks v. Kruse , 445 F.3d 396, 399

– 400 ( 5th Cir. 2006)). Because plaintiffs have not shown a likelihood of success on the merits, we affirm the denial of injunctive relief without examining the other prongs

.

I. We first address plaintiffs’ claims not explicitly based on the Eighth Amendment. T hey argue that the state ’s failure to disclose information regarding the method of execution in a timely manner violates a constitutional right of access to the courts. That argument fails for two reasons. First, as the district court noted, the state co mplied with requests for information about how it intended to execute Yowell p romptly after the plaintiffs requested that information. The state gave i nformation timely after it had the information. Second, even if there was some delay because of uncert ainty on the part of the state as to how it would proceed with executions, plaintiffs’ access
- to

the

- courts argument still hinges on their ability to show a potential Eighth Amendment violation. One is not entitled to access to the courts merely to 2 Case: 13-70031 Document: 00512401226 Page: 2 Date Filed: 10/08/2013No. 13

- 70031

argue that there might be some remote possibility of some constitutional violation. P laintiff s must plead sufficient facts to state a cognizable legal claim. See, e.g. , Ashcroft v. Iqbal , 556 U.S. 662, 678 (“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.

. . . The plausibility standard

. . . asks for more than a sheer possibility that a defendant has acted unlawfully.”). Therefore, plaintiffs mu st show some likelihood of success on the merits of the Eighth Amendment claim. A plaintiff cannot argue that if only he had infinite time

— or even just a little bit more time

— then he might be able to show a likelihood of success. To hold otherwise would be to eviscerate the first requirement of the standard for preliminary injunctions.
P laintiffs contend that by failing to disclose the information timely , the state has thwarted the Supremacy Clause by hindering their ability to vindicate their federal r ights. Again, the state has not failed to disclose timely

. But moreover, this claim, too, rises and falls with the Eighth Amendment claim. The state does not dispute the applicability of the Supremacy Clause , which merely makes the Eighth Amendment effe ctive against the state. See Marbury v. Madison , 5 U.S. (1 Cranch) 137, 176

– 180 (1803) ; McCulloch v. Maryland , 17 U.S. (4 Wheat.) 316, 406 (1819). It does not provide its own cause of action. Finally, plaintiffs maintain that Yowell is entitled to more procedural due process under the Fourteenth Amendment. To make such a claim, plaintiffs must demonstrate that Yowell has a cognizable liberty or property interest. See Sepulvado v. Jindal , No. 13

- 70007, 2013 WL 4711679, at *4 (Aug. 30, 2013). That clai m is arguably foreclosed by Sepulvado , which held that uncertainty as to the method of execution does not amount to a cognizable liberty interest. Id. Moreover, the state has disclosed the requested

3 Case: 13-70031 Document: 00512401226 Page: 3 Date Filed: 10/08/2013No. 13

- 70031 information regarding the execution , and plaintiffs hav e not shown why the hearing on the preliminary injunction was insufficient process. Even if the facts here were sufficiently different from those in Sepulvado , plaintiffs would still have to show success at least on the Eighth Amendment claim. Even if the Fourteenth Amendment sometimes protects liberty interests not explicitly enumerated in the Constitution , we know of no case, in the context of executions , in which the Supreme Court has found a liberty interest to exist , based on the contours of the Ei ghth Amendment , that goes beyond what that Amendment itself protects. We therefore turn to the Eighth Amendment claim.

II. Under Baze v. Rees , 553 U.S. 35, 61 (2008), [a] stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives.
A plaintiff can therefore succeed o n an Eighth Amendment claim in this context only if he can establish both that the state’s protocol “creates a demonstrated risk of severe pain” and that th at risk “is substantial when compared to the known and available alternatives.” Plaintiffs contend that they can “clearly meet” success on either prong , but their more serious contention is that if they cannot demonstrate that the
Baze standard is met , it is because they need more time to do so . It is indeed not unreasonable to assume that if a prison er has the right to be free from a demonstrated risk of severe pain when compared to a known and available alternative, he ought to have the opportunity to prove the risk of pain and the availability of alternatives. Even so, plaintiffs must point to some likelihood 4 Case: 13-70031 Document: 00512401226 Page: 4 Date Filed: 10/08/2013No. 13

- 70031 that such pain will be severe and that some alternative may exist. It is unacceptable to claim that some unspecified amount of time is required, just in case they might happen to be able to show that there might be some risk of potentially exc essive pain. If the state were using a drug never before used or un heard of, whose efficacy or science w as completely unknown, the case might be different. The
state , however, will use a standard amount of pentobarbital for Yowell’s execution. Plaintiffs argue that because the state has transitioned to using compounding pharmacies, there are known unknowns because of the possibility of contamination. That may be true, but plaintiffs must point to

some hypothetical situation, based on science and fact, showing a likelihood of severe pain. None of the examples in their brief show s any such possibility based on the known unknowns stemming from obtaining drugs from a compounding pharmacy. Plaintiffs claim that compounding pharmacies are not subject to stringent FDA regulations, that the active ingredients are obtained from a global “grey market,” and that there is a chance of contamination. Plaintiffs claim, along with their expert, that this increases the risk of a more painful inje ction, a burning sensation if the acidity is incorrect, or conditions such a pulmonary embolism. They assert it increases the risk of a potency problem that may make the drug ineffective in killing (although the lab oratory results for the drug showed a 98 .8% potency). All of these things may be true. But what plaintiffs are demanding is that , in effect, they be permitted to supervise every step of the execution process. They have no such entitlement. They must offer some proof that the state’s own pro cess

— that its choice of pharmacy, that its lab results, that the training of its executioners, and so forth, are suspect. Plaintiffs have pointed to only hypothetical possibilities that the process was defective. 5 Case: 13-70031 Document: 00512401226 Page: 5 Date Filed: 10/08/2013No. 13

- 70031 Even if plaintiffs’ hypothetical situatio ns were to come to pass, they would merely demonstrate a “risk of severe pain , ” not that th at risk was substantial when compared to known and available alternatives. The demonstrated risk of pain is merely the risk concomitant with any use of drugs

— that t hey might fail or cause side effects from contamination or a lack of potency. Plaintiffs have not shown that the risk of such contamination is “substantially” greater than from a customary pharmacy or from any other source that the state could use for its drugs , as required by Baze

. The plaintiffs basically argue not just that there are known unknowns, but that there may be unknown unknowns; that, if only they had more time, they might discover something wrong with the drugs. Unknown unknowns, however, ar e insufficient to demonstrate a risk of harm ; s omething more is needed to meet the difficult preliminary

- injunction standard

. The closest case on point does not help the plaintiffs. In Landrigan v.
Brewer , 2010 WL 4269559 (D. Ariz. Oct. 25, 2010), the pla intiff had pointed to a similar risk of harm where the state received its drugs from foreign, non

FDA

- approved sources and did not reveal , in a timely manner , the source of the drugs. The plaintiff alleged a more concrete risk than here: According to Plaintiff, because [the] supply of sodium thiopental lacks the appropriate safeguards, it could be “contaminated with toxins that cause pain, as opposed to unconsciousness” or could fail to properly anesthetize him, thus resulting in excruciat ing pain when the second and third drugs are administered. Plaintiff further alleges that Arizona has feasible alternatives

— it can obtain sodium thiopental from Hospira when the company starts manufacturing the drug again in early 2011, or it can use anot her available, FDA

- approved barbiturate.

Id. at *5. The district court concluded that the “ use of sodium thiopental from

a non
- FDA

- approved source raises issues regarding its eff icacy and possible side

- effects,” so the court was “ unable to determine whet her the drug was 6 Case: 13-70031 Document: 00512401226 Page: 6 Date Filed: 10/08/2013No. 13

- 70031 produced by a foreign company that follows standard op erating procedures for the drug’ s manufacture or that has no history of contamination in manufacturing the product. ” Id. at *10. The court thus accepted the plaintiff’s showing that “ such drugs are more likely to contain harmful contaminants , ” and it issued a stay of execution. Id. The Ninth Circuit affirmed. 625 F.3d 1144 (9th Cir. 2010)

. The Supreme Court, however, vacated the stay in a one

- paragraph opinion. Brewer v. Landrigan , 131 S. Ct. 445 ( 2010)

. It held: “T here is no evidence in the record to suggest that the drug obtained from a foreign source is unsafe. The district court granted the restraining order because it was left to speculate as to the risk of harm. But specula tion cannot substitute for evidence that the use of the drug is ‘ sure or very likely to cause serious il lness and needless suffering.’” Id. (quoting Baze , 553 U.S. at 50; internal citation and quotation marks omitted). Thus, even in light of a plausible s cenario

— that the foreign drug could contain a specific contaminant that would render the anesthetic ineffective

— the Supreme Court held that mere speculation is not enough. There must be some indication in the record that the drug is very likely to cause n eedless suffering. There is no such evidence in the record before us. The order denying injunctive relief is AFFIRMED. Yowell’s motion for stay of execution is DENIED.

7 Case: 13-70031 Document: 00512401226 Page: 7 Date Filed: 10/08/2013